Are European judges still “absolutely bound” by the Safe Harbor?

Irish High Court, Case 2013 765 JR, June 18, 2014

On June 18, 2014, the Irish High Court referred to the EU Court of Justice a number of questions concerning the application of the Safe Harbor principles regarding cross-border transfer of private data, the key issue being whether national judges are “absolutely bound” by a company’s declaration to participate in the Safe Harbor, or whether they could still conduct their own investigations to determine if personal data are protected according to EU standards.

In Schrems vs. Data Protection Commissioner, Mr. Schrem sued the Irish Data Protection Commissioner because the latter had refused to order Facebook Ireland to stop transfer data to its parent company in the United States.

While in Mr. Schrems’s view “the Snowden disclosures demonstrate”, that “there is no effective data protection regime in the United States”, the Irish Data Protection Commissioner maintained to be “bound by the terms of a finding of the European Commission in July 2000 to hold that the data protection regime in the United States is adequate and effective where the companies which transfer or process the data to the United States self-certify that they comply with the principles set down in this Commission decision”.
Judge Hogan noticed that “much has happened in the interval since July 2000. The developments include the enhanced threat to national and international security posed by rogue States, terrorist groupings and organized crime, disclosures regarding mass and undifferentiated surveillance of personal data by the US security authorities, the advent of social media and, not least from a legal perspective, the enhanced protection for personal data now contained in Article 8 of the Charter.”
The Judge noticed also that “the essential question which arises for consideration is whether, as a matter of European Union law, the Commissioner is nonetheless absolutely bound by [the 2000 Commission’s finding of adequacy] … having regard in particular to the subsequent entry into force of Article 8 of the Charter, the provisions of Article 25(6) of the 1995 Directive notwithstanding”.
Judge Hogan adjourned the proceedings pending the ECJ’s decision.

The full text of the judgments is available at: http://www.bailii…

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Relevant Law: EU Directive 95/46/EC

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